Authors sign an exclusive license agreement, where authors have
copyright but license exclusive rights in their article to the
publisher**. In this case authors have the right to:

Share their article in the same ways permitted to third parties under the relevant user license (together with Personal Use rights) so long as it contains a CrossMark logo, the end user license, and a DOI link to the version of record on ScienceDirect.

**This includes the right for the publisher to make and authorize
commercial use, please see the "Rights granted to Elsevier" tab for more
details.

Comments

The copyright may be in the author's name, but clearly the author has signed away all rights. The only rights that remain for the author are those "permitted to third parties". The author has become a third party with respect to their own work.

Patent, trademark and other IP rights are not part of copyright. It is deceptive for Elsevier to post these here as if Elsevier had these rights to grant.

Thursday, May 21, 2015

mBIO has excellent language on their website http://mbio.asm.org/site/misc/authors.xhtml
explaining what they mean to exclude and include by using a CC noncommercial license. This could be model for others so copied in full below. The first part is copied directly from the CC website, a good practice which avoid errors in interpretation that would be possible with paraphrasing.

ASM publishes mBio articles under
the Creative Commons Attribution-Noncommercial-Share
Alike 3.0 Unported license. The author(s) retains copyright under
this license. Others may adapt, reorganize, and build upon
the published work for noncommercial purposes, as long as
credit to the author and original article is given, and the
new work, which includes the previously published content,
is licensed under identical terms.

Noncommercial reuse is defined as use
that is not intended for or directed toward commercial advantage.
This would include the following:

Content
requested by an academic or educational institution

Content
requested by a not-for-profit publisher if not for resale

Content
requested for use by the government

Content
requested for a thesis or coursepack

Author request
to use his/her own material

Individuals seeking to
obtain permission for commercial reuse of mBio journal content may do so
through the Rightslink web-based
permissions and commercial reprint system. To
use Rightslink, on the mBio website search for the journal article
containing
the content which you would like to reuse and
then click on the "Reprints and Permissions" link that appears on the
journal
table of contents or within the article
content box.

Commercial reuse applies if the content
being requested will be distributed for a fee or by an
organization legally recognized as a commercial entity (demonstrated,
for example, by payment of taxes, incorporation, or support
by advertising/corporate sponsorship). This includes:

Commercial/for-profit
publishers

Companies or organizations representing or interfacing with
a for-profit pharmaceutical organization (e.g., content
to be reused to promote or advertise a pharmaceutical product)

Wednesday, May 20, 2015

According to a recent post by the Open Access Scholarly Publishers Association, 543,611 articles were published by open access-only journal using CC-BY licenses between 2000 and 2014, with 141,232 of these articles published in 2014 alone.

It is wonderful to see the growth of open access publishing, and kudos to these journals publishing with what they believe is the best license for open access.

Critique

CC-BY licenses permit blanket downstream commercial use as well as derivatives. I argue that the larger the corpus of works licensed CC-BY and the easier it is to gather such works (e.g. using robots to search metadata), the greater the temptation becomes for new commercial players to make use of these downstream rights. None of the CC licenses require that works be made available free-of-charge. It is possible that we'll end up paying for access to these works that are now free-of-charge and/or paying for downstream value-added services - or do without these benefits if we cannot afford them. For example, there is nothing about CC licenses to indicate that downstream users of works created by researchers in poorer regions have a right to benefit from access to downstream derivatives. Third world medical researchers and funders could be shut out of point-of-care tools created using the works that they have given away, for example.

The emphasis on open access only journals does not appear to welcome or encourage conversion of traditional journals to open access. There are still many journals publishing in print or both print and online. The members of societies publishing such journals in some cases still want the print versions. Any journal with a history of more than about 10 years predates Creative Commons and would have to undertake a major re-licensing effort to have a journal-wide CC license. It is good to see a strong and growing open access publishing community, but it is important to recognize that members of OASPA are organizations, often commercial in nature, that have their own business interests.

Finally, not every journal with a CC license can be described as having a journal-wide CC license. If a journal has been publishing for 10 years and initiates CC licensing for future issues, this does not change the license for back issues. Even for many journals and publishers with the strongest commitment to a CC license, there can be individual works and/or third party works in the journal that are not under this license.

Tuesday, May 19, 2015

The purpose of this post is to record some of the issues I come across in the May 2015 survey of open access article processing charges relating to copyright and licensing. Copyright note: in this post I copy a lot of text from publisher websites. In doing so, I am drawing on my rights under fair dealing to copy portions of works for academic research and critique. I can do this even with works that are All Rights Reserved. However I cannot re-license the works of others. Language below from publisher websites is not covered under the IJPE CC-BY-NC-SA license. This illustrates one of the problems with looking for the simplicity of licensing at the level of whole works. My CC license may give a downstream user the incorrect impression that they are free to use these portions of works that are not under my copyright. This could pose problems for the downstream user, the publisher, and for me. If we want to push policies that demand licensing at the whole work level, this would make this type of work a lot more difficult if not impossible. I'd have to ask permission to use CC licenses for the publishers' work; I can imagine that this might be difficult when the reason I am doing this is to critique the publishers' practice. The other option is to omit these works, which is actually a loss of the re-use rights we have under fair dealing. Good copyright policies, practices and laws aren't just about Creative Commons. I argue that we need to defend, protect and expand our rights under fair dealing.

Update July 4: Bentham Open: authors retain copyright, but clearly Bentham Open considers itself to be the Licensor of the Creative Commons Attribution-Noncommercial License. This illustrates two common confusions in open access publishing: author copyright retention which is nominal in nature (see below for other examples), and when Creative Commons licensing is used, who is the Licensor. In order to grant rights under copyright, one must first have the rights to grant. Bentham Open is clearly expecting a broad-based author copyright rights transfer that is very similar to full copyright transfer.

-->
Authors who publish in Bentham OPEN
journals retain copyright to their work. Submission of a manuscript to the
respective journals implies that all authors have read and agreed
-->

Bentham OPEN (Licensor) grants the author(s) a worldwide,
royalty-free, non-exclusive, and non-commercial perpetual license to
exercise the rights in the article published as stated below:

1.All articles are
published under the Creative Commons Attribution License (http://creativecommons.org/licenses/by/3.0/)
which permits unrestricted, non-commercial use, distribution and reproduction
in any medium, provided that the work is properly cited.

2.The authors retain
the copyright of their published article. They will also have the right to:

1.Reproduce the article, to incorporate the article into one or
more collective works, and to reproduce the article as incorporated in
collective works;

2.Create and reproduce Derivative Works for educational
purposes.

3.Distribute Copies

4.Any commercial application of the work, with prior agreement
by the author, is exclusively granted to Bentham OPEN

Waiver: Authors grant to
Bentham OPEN (licensor) the right to
retain all revenue from commercial sales of the author's published article in a
Bentham OPEN journal.

Bentham OPEN offers
affordable article processing fees, ranking amongst the lowest as compared to
those of other OPEN access journal
publishers. An article-processing fee payable by the author/ author's
institution applies for every accepted article, to cover the costs incurred by
OPEN access publication. Members of Bentham OPEN are entitled to discounted article processing fees.

Authors can self-archive post prints of their published
articles.

Authors can reproduce derivative works of the article for
educational purposes and distribute its copies.

Update May 28: Environmental Health Perspectives is published by the U.S. government and hence is in the public domain. Note the language about third party works - portions of articles taken from works copyrighted by others do not become public domain when published in EHP.

Copyright, Reproduction, and Citation

EHP is a publication of the U.S. Government. Publication of EHP lies in the public domain and is therefore without copyright. All text from EHP may be reprinted freely. Use of materials published in EHP should be acknowledged (for example, “Reproduced with permission from Environmental Health Perspectives”); pertinent reference information should be provided for the article from which the material was reproduced. Articles from EHP, especially
the News section, may contain photographs or figures copyrighted by
other commercial organizations or individuals that may not be used
without obtaining prior approval from the holder of the copyright. For
further information, contact EHP Permissions...from http://ehp.niehs.nih.gov/instructions-to-authors/

Update May 28: the Oxford Open license mixes up CC-BY and CC-BY noncommercial, says "compatible with the Creative Commons Attribution Licence" then shortly after "Noncommercial. You may not use this work for commercial purposes".

Update May 28: the Bosnian Journal of Basic Medical Sciences has language with a good model for differentiating commercial and non-commercial use:

For commercial use no part of this publication may be reproduced,
stored in a retrieval system or transmitted in any form or by any means,
electronic, mechanical, photocopying, recording or otherwise, without
prior written permission of the Publisher.

Update May 28: Engg Publishers - the Journal of Computing / Academy Publisher's copyright transfer agreement is one example - is a clear example of a fully gold OA publisher prohibiting author self-archiving. Following are the author / employer rights (employer in case of work-for-hire) after copyright transfer with respect to self-archiving:

The right to make copies of the Work for internal distribution within the institution which employes the author. from: http://www.jcomputers.us/JCP_Copyright.pdf

The Electronic Journal of Geotechnical Engineering has nearly identical language in their Copyright Transfer Agreement:

Update May 27: the Creative Commons noncommercial element may be used for a number of reasons. Authors like myself or people sharing photos on flickr may prefer NC licenses simply because they want to share their work but do not want to grant blanket permission to others to make money off the work. However, publishers may choose to use NC to indicate that they wish to retain exclusive commercial rights. Dove Medical Press provides a clear-cut example of this. Following is language from the Dove commercial rights site:

The articles published on and distributed from the Dove Medical Press websiteat http://www.dovepress.com, or available at any journal indexing web sites or any other website that provide access to any DMP published articles or any part of an article (including, but not limited to the abstract, figures, tables) may not be distributed, make copies or reproduce, in any media or format, all or any of the articles in any manner that is primarily intended for or directed toward commercial advantage or monetary compensation without the prior written consent of Dove

Medical Press, and the payment to Dove Medical Press of an appropriate fee. For the avoidance of doubt, providing a hyperlink to a DMP article in a manner that is primarily intended for or directed toward commercial advantage or monetary compensation shall be a breach of the license terms.

Comment: this use of the noncommercial term is clearly intended solely to protect the financial interests of the publisher, not the rights of authors or research subjects or the protection of the OA status of the works which I would argue are other good reasons for considering noncommercial licenses. The inclusion of language about hyperlinking seems a better fit for IP protection / copyright maximalism than open access. It is ludicrous and dangerous to sharing (of knowledge, cultural, free expression of various kinds) to invoke copyright in linking. Imagine if we could not cite without clearing copyright? This example may help illustrate the attraction of the CC-BY license; CC-BY would address this kind of mis-use of the noncommercial element, however as I point out in the Creative Commons and Open Access series, this solves one set of problems but introduces other serious problems.

Update May 22: the Elsevier website provides a good illustration of how author copyright can be in name only, with all but nominal rights transferred to the publisher.

Update May 22: Brill has a suite of Open Content license-to-publish for different CC licenses that is worth a look. The author indemnity clause is a concern; I would recommend not signing. The NC licenses clarify that authors depositing in repositories are making their work available, but not for commercial use. This is a good move in my opinion; it protects repositories from pressures to sell their content.

Update May 21: mBIO has such good language for explaining what they mean in using a noncommercial license that the language is copied in a separate post.

Update May 21: the draft policy I first noticed in the Journal of Orthopaedic Case Reports appears to be an OJS default policy.

For published papers Open Access Publications (OAP), following are the policies that are applicable:

author retain the copyrights of the work.

author has the right for proper attribution and credit for the published work.

author gives the right to reuse of their work defined by CC-BY.

author can self-archive his
article provided that he inform CSC Journals including the complete
details to which article is shared, submitted or uploaded to any
website.

PUBLISHER RIGHTS

As an open access publisher, we need publishing rights in
order to publish and widely disseminate and share your publish papers
through websites, databases and for printing. Author gives certain
rights to CSC Journals for their articles including:

DOAJ indicates CC-BY-NC-ND while the journal site indicates All Rights Reserved

This is far from optimal open access. I can understand why pushing for a CC-BY default would be tempting as a solution. But would a more liberal CC license solve these problems? This is less clear. If a journal requires author copyright transfer, there can be a license agreement between author and publisher that limits the rights of the author. If the publisher holds the copyright, the publisher can change the license or transfer the journal to another publisher that uses a different license. DOAJ indicates that this journal is CC-BY-NC-ND, however I see no indication on the journal website that this license is used. It is possible that the journal changed policy at some point in time, in which case this information may have been correct when it was entered, and may be correct for some of the content in the journal, but not for articles published today. Indicating licensing at the journal level is not the simple solution that it might seem. Excerpts from the Open Access Policy page:As an author of a paper submitted to
Advances in Electrical and Computer Engineering journal, you have to
transfer the copyright of your paper prior to the evaluation process.
The copyright transfer covers all rights to referee, translate, publish,
digitize, archive, reproduce and distribute, including reprints,
photographic reproduction, microform, or any other reproductions of
similar nature. For details please see the Copyright Transfer Form.

By signing the Copyright Transfer you still retain substantial rights,
such as self-archiving. Bellow are summarized some of the right the
author(s) retain along with some things they are not allowed to do.

What you are expressly NOT ALLOWED to do:

- Do not post the full article PDF file downloaded from the AECE
web-site to any other web-site(s). Instead, you may use a link to the
article page using the
permanent link by using the Digital Object Identifier (doi:) link
http://dx.doi.org/AECE-paper-doi (every article has a DOI number
assigned
- see the one assigned to your paper);

Permission for other use: The copyright owner's consent does not
extend to copying for general distribution,
for promotion, for creating new works, or for resale. Specific written
permission must be obtained from the Editor for such copying.
Direct linking to files hosted on this website is strictly prohibited.

Disclaimer: Whilst every effort is made by the publishers and
editorial board to see that no inaccurate or misleading data,
opinions or statements appear in this journal, they wish to make it
clear that all information and opinions formulated in the articles,
as well as linguistic accuracy, are the sole responsibility of the
author.

The solution? The default open access policy statement that comes with OJS journals may be enough. The intent is clear. Uses consistent with the global exchange of knowledge are clearly in line with this policy. Commercial use and creation for derivatives for reasons other than the global exchange of knowledge are not clearly pre-approved, avoiding the problems of blanket downstream permission that come with CC licensing.

Open Access Policy

This journal provides immediate open access to its content on the
principle that making research freely available to the public supports a
greater global exchange of knowledge.

Copyright Notice

Upon acceptance of an article by the journal, authors will be asked to transfer the copyright to Electronic Journal of Biotechnology,
which is committed to maintain the electronic access to the journal and
to administer a policy of fair control and ensure the widest possible
dissemination of the information. The author can use the article for
academic purposes, stating clearly the following: "Published in
Electronic Journal of Biotechnology at
DOI:10.2225/volXX-issueX-fulltext-XX".

if and
when the manuscript is accepted for publication, the authors agree to automatic
transfer of the copyright to the publisher.

International Journal of Educational Research & Technology: copyright transfer http://soeagra.com/ijert_author.html "COPYRIGHT
POLICYEach manuscript must be accompanied by a statement that it
has been neither published nor submitted for publication, in
whole or in part, either in a serial, professional journal or as
a part in a book which is formally published and made available
to the public. For the mutual benefit and protection of authors
and publishers it is necessary that authors provide formal
written consent to publisher and transfer of copyright form
after acceptance of papers is
necessary that authors provide formal written consent to
publisher and transfer of copyright form after acceptance of
papers "

International Journal of Education Research - website says "free online access" and Author Guidelines include this disclaimer:

The
IJER is protected under international copyrights. The IJER provide full
data free of cost to all users. Important notice for copy right are –

·No data from this website can be copied or used anywhere without pre-permission.

·Neither IJER nor a member involves in copy and reuse of data from any other website.

In case of publication of the article in the journal, I/We hereby assign
copyright to the ‘International Journal Of Innovative Research &
Development’ for its publication in any form/language including all
media (print and electronic, or presently unknown), and exclusive right
to use the matter for the life of the work (no time restriction on reuse
of matter). ‘International Journal Of Innovative Research &
Development’ may assign its rights under this Agreement.

Note that this is in contradiction with the spirit the default OJS statement on the journal's open access policy page which states: "This journal provides immediate open access to its content on the
principle that making research freely available to the public supports a
greater global exchange of knowledge". This contradiction may reflect a default policy left in the software without review or a learning curve about open access.

More examples of copyright transfer (I won't copy the language every time unless there is something different):

License to publish - the Problems of Economy Journalhas an interesting license to publish. The Licensor is the Author - here is what the author grants to the journal - it appears the only limitation for the author involves giving away exclusive rights to another publisher:

2.1. The Licensor grants the Licensee a non-exclusive
license, which gives the right to use the Article of the Licensor
within the contractual boundaries.

2.2. This Contract provides the rights to use the Article in the following ways:
– reproduction of the Article;
– inclusion of the Article into journals, anthologies, monographs, etc.;
– distribution of the Article;
– presenting the Article to the general public in such a manner that its
representatives can have access to the Article from any place and at
any time at their own discretion.

2.3. The Licensor has the right to continue to use the Article and provide a non-exclusive license for its use to other parties.

Interstat copyright statement:
InterStat
does not copyright its contents. Thus an author is free to submit the
article elsewhere. Of course, an article which has already appeared in a
copyrighted publication may not be submitted for publication in
InterStat. [Comment: the publisher is based in India, a signatory to the Berne Convention which includes automatic copyright. If the publisher does not claim any copyright, this remains with the author(s), assuming they are from Berne countries. This might not be clear to authors].

The undersigned author(s) retain copyright and grant the journal right
of first Publication with the work simultaneously licensed under
a Creative Commons Attribution License that allows others to share the
work with an acknowledgement of the work's authorship and initial
publication in this journal...All accepted works should not be published elsewhere without prior written permission from JAHM.
[emphasis added] The author(s) hereby represents and warrants that they are sole
author(s) of the work, that all authors have participated in and agree
with the content and conclusions of the work, that the work is original,
and does not infringe upon any copyright, propriety, or personal right
of any third party, and that no part of it nor any work based on
substantially similar data has been submitted to another publication.

COPYRIGHT TRANSFER: Copyright to the above work (including without limitation, the right to publish the work in whole, or in part, in any and all forms) is hereby transferred to RESEARCH, SCIENCE AND TECHNOLOGY PUBLISHERS.

Update May 21 - note that this appears to be an OJS default statement as the same language appears in

Update October 4, 2015: the Journal of Orthopaedic Case Reports now uses a CC-BY-NC-SA license which seems to be a good fit for the rights-sharing approach they are looking for. The editor has honoured me to write an editorial on this topic for the January 2016 issue, which I have accepted. The issues are complex - not just which CC license to use, but also the nature of the contractual relationship between journal and publisher - so this is an interesting and timely topic.

Proposed Policy for Journal of Orthopaedic Case Reports

Authors who publish with this journal agree to the following terms:

Authors retain copyright and grant the journal right of first publication with the work simultaneously licensed under a Creative Commons Attribution License that allows others to share the work with an acknowledgement of the work's authorship and initial publication in this journal.

Authors
are able to enter into separate, additional contractual arrangements
for the non-exclusive distribution of the journal's published version of
the work (e.g., post it to an institutional repository or publish it in
a book), with an acknowledgement of its initial publication in this
journal.

Authors are permitted and encouraged to post their
work online (e.g., in institutional repositories or on their website)
prior to and during the submission process, as it can lead to productive
exchanges, as well as earlier and greater citation of published work
(See The Effect of Open Access).

Copyright transfer + CC-BY-NC-ND + referral to copyright clearance center for photocopies: those who wish to get their photocopies are requested to obtain permission from copyright clearance centre - Journal of Toxicologic Pathology.

CC-BY-NC-SA with instructions to contact author to request permission for noncommercial use (the point of the CC licenses is so it is not necessary to request permission): mBio http://mbio.asm.org/site/misc/authors.xhtml

issue: failure to understand that CC license terms are meant to avoid the need to ask permission

All Rights Reserved with extra limitations: The Modern journal of Applied Linguistics (MJAL)
All rights reserved. No part of this journal may be reproduced in any form, by Photostat,
microfilm, xerography, or any other means without permission in writing from the copy right
owner. from http://www.mjal.org/

Wednesday, May 06, 2015

Thanks very much to Allen Press for inviting me to speak on the topic of open access and creative commons licensing at the Emerging Trends in Scholarly Publishing in Washington, D.C. on April 16, 2015. Links to view a video of her presentation or download her slides can be found here:http://allenpress.com/resources/archive